Response to Public Comments on the Protocol for Notification and Work Group Functions for Evaluating Potential and Active Air Pollutant Watch List (APWL) Areas
February 2012
23
Background
The Texas Commission on Environmental Quality (TCEQ) accepted public comments on the Protocol for Notification and Work Group Functions for Evaluating Potential and Active Air Pollutant Watch List (APWL) Areas (protocol). The TCEQ accepted comments on the draft protocol from November 23, 2010, to January 24, 2011.
Commenters
The TCEQ received comment letters from Texas Chemical Council (TCC), TPC Group (TPC), the Texas City La Marque Air Monitoring Network (TCLM), and Air Alliance Houston/Environmental Defense Fund (AAH).
Responses to Comments
Comment 1
AAH requested that the TCEQ strengthen the APWL program by adopting the protocol into rule, expressing concern that the failure to adopt the APWL protocol as a rule will reduce the effectiveness of the program. AAH further stated that, without a legislative or rulemaking action, the APWL serves only as a weak substitute for any meaningful action that may help remediate APWL areas. AAH provided a detailed example of testimony given by an industry organization and stated that the TCEQ should conduct formal rulemaking if it wished to implement the APWL process. In addition, AAH commented that an APWL rule would provide the best middle ground for implementation, in that it would be less rigid than a statute, yet firmer than mere agency program or directive. Finally, AAH commented that implanting the APWL as a TCEQ rule with a public participation phase is the only completely transparent means of implementing the program.
Response 1
The TCEQ appreciates AAH’s concern that adopting the APWL protocol as a TCEQ rule may be an appropriate “middle ground” for implementation, but makes no changes to the protocol in response to this comment. The TCEQ is establishing the APWL protocol in accordance with House Bill (HB) 1981, passed by the 82nd Texas Legislature in its 2011 Regular Session. HB 1981 requires that that TCEQ establish and maintain an air pollutant watch list that identifies air contaminants and geographic areas where short- or long-term adverse health effects or odors may occur. Moreover, HB 1981 requires the TCEQ to post public notice of and receive comment on changes related to the addition or removal of an air contaminant or geographic area on the list, as well as the discretion to hold public meetings in an area on the list. The legislature also mandated in HB 1981 that the air pollutant watch list as contemplated not be subject to Texas Government Code, Subchapter B, Chapter 2001, Administrative Procedure, which in certain circumstances requires the TCEQ to initiate formal rulemaking. The TCEQ is using the final APWL protocol to implement HB 1981 and the APWL process.
Comment 2
AAH commented that the current protocol fails to provide for the possibility of remediation efforts for untraditional APWL areas, such as those that may exist as a result of oil and gas operations or other activities where operations may not be permitted through the same mechanisms as would a typical facility.
Response 2
The purpose of the APWL is to address areas of the state with elevated ambient concentrations of air toxics. In order to accomplish the goals of the APWL, the TCEQ uses monitoring data to determine whether areas are listed on the APWL. The permit mechanisms used to authorize facilities would not restrict the TCEQ’s ability to identify an APWL area and address concentrations above levels of concern. To date, the TCEQ has not identified an oil and gas exploration area to be listed on the APWL, based on current monitoring information. The TCEQ makes no changes to the protocol in response to this comment.
Comment 3
AAH commented that the protocol offers no distinction regarding APWL areas that exceed Air Monitoring Comparison Values (AMCVs) versus those that exceed concentrations of individual pollutants for which an enforceable standard exists. For example, hydrogen sulfide is a pollutant for which the state has adopted state standards that are legally enforceable health-based limits. AAH asked if the agency intends to handle APWL pollutants such as hydrogen sulfide differently from pollutants for which there is only an AMCV. AAH also commented that the APWL should codify the standards and/or guidelines to which it will compare ambient levels for possible initiation of APWL designation.
Response 3
In response to this comment, the TCEQ revised the background section of the protocol to specify that the TCEQ will establish APWL areas where ambient monitoring indicates persistent concentrations above state standards or AMCVs. The TCEQ will identify areas of concern, in accordance with the protocol, by comparing monitored concentrations to ambient air toxic standards, where available; otherwise, the TCEQ will compare monitored concentrations to the AMCVs established by the TCEQ’s Toxicology Division (TD). The TCEQ has established state ambient air standards for two air toxics: sulfur dioxide and hydrogen sulfide. Because these standards exist, the TCEQ has not established AMCVs for these two air toxics. The TCEQ will use AMCVs to evaluate monitored concentrations of all other air toxics. The TD establishes and maintains AMCVs through its “Guidelines to Develop Effects Screening Levels, Reference Values, and Unit Risk Factors” (RG 442). The TCEQ makes no changes to codify its AMCVs into the APWL protocol in response to this comment. More information about AMCVs is available on the TCEQ Web site.
Comment 4
AAH commented that administrative penalties in APWL areas should be increased.
Response 4
The TCEQ makes no changes to the protocol in response to this comment, as the draft protocol addressed penalties in APWL areas. Appendix 3, Functional Roles in Work Groups, specifies that the Enforcement Division will use discretion to assess appropriate penalties to discourage releases of APWL pollutants and to ensure that owners and operators achieve compliance for violations in a timely manner.
Comment 5
AAH commented that the mission of the APWL program lacks robustness and that mitigating health risks inherent to living within an APWL area is not reflected within the current mission of the program.
Response 5
The TCEQ did not revise the protocol to specifically tailor the mission statement to residents that live within an APWL area because APWL boundaries are generally established to encompass companies that are encouraged to reduce emissions (i.e., those that may be contributing to elevated ambient concentrations), not to delineate or identify neighborhoods that are impacted by elevated concentrations.
Comment 6
TPC recommended that the intention of the work process outlined in the vision and mission section of the APWL protocol be clarified. Specifically, TPC commented that the section should include the identification of contributing emissions sources in actual or potential APWL areas that would drive timely and effective emissions reductions and that the TCEQ manage the overall process with appropriate stakeholder input from both within and outside the agency. These efforts would then achieve the end objective of reducing ambient air concentrations of pollutants of concern to levels below thresholds of concern. TPC further commented that greater specificity and clarity on those points can serve as the overall guiding focus for the agency for those inevitable situations where the guidance may need to be modified to address unique aspects of a given actual or potential APWL area. TCLM commented that the program vision statement specify that information is both shared with and received from internal and external customers, emphasizing the need for enhanced communication with stakeholders in the specific wording of the vision statement. AAH suggested a revision to the mission statement to state, “To reduce levels of air toxics in APWL areas as expeditiously as practical to ensure healthy air quality for all residents within such areas by providing mechanisms for TCEQ program involvement into site-specific APWL decisions, including communication to internal and external stakeholders and determination of strategic actions in pursuit of air quality improvements.”
Response 6
The TCEQ revised the mission statement in response to these comments to more clearly state the objectives to reduce ambient air toxic concentrations below the applicable levels of concern in APWL areas as quickly as possible, to identify potential contributing sources in specific APWL areas, to develop strategic actions to obtain timely and effective emission reductions from identified contributing sources, and to provide mechanisms for involving TCEQ programs and stakeholders in the APWL process. The protocol was proposed with the vision of improving air quality to reduce ambient levels of the pollutants of concern. The revisions clarify that the ultimate goal of the APWL is to reduce ambient concentrations of air toxics to levels that are no longer of potential concern, while focusing on the need for internal TCEQ and external stakeholder involvement.
The TCEQ developed the protocol to provide a clear structure for listing and delisting procedures and also provide the flexibility to address unique situations associated with individual APWL areas. The TCEQ will follow the protocol to every extent possible.
Comment 7
AAH commented that the APWL Coordinator and staff from the TCEQ Regional Office should hold an annual meeting within each APWL area to communicate the past year’s toxic levels, explain initiatives undertaken in the past year to reduce those levels, and explain upcoming initiatives to continue to reduce toxic levels. AAH stated that it is vital for the TCEQ to meet citizens in their local areas in order to explain, interact, and take questions and concerns from the public. AAH further stated that annual meetings would help improve awareness of the local community, would allow the community to provide useful insights, and would provide incentive for TCEQ staff to maintain their commitment to reducing levels of toxic pollutants over multi-year campaigns.
Response 7
The TCEQ agrees that public meetings are beneficial. Given resource constraints, the TCEQ cannot commit to holding a mandatory public meeting each year in each APWL area at this time. The APWL Coordinator will plan public meetings, giving appropriate consideration to the level of activity in each requisite APWL area. The TCEQ makes no changes to the protocol in response to this comment.
Comment 8
AAH expressed its concern regarding the statement that all necessary revisions to the APWL protocol or Work Group functions are approved by all affected Directors on page 5 of the draft protocol, because it seems to indicate that the protocol may be subject to significant change without the opportunity for the public to provide comment on such changes.
Response 8
Page 5 of the protocol states that the TCEQ will provide an opportunity for public comment on any significant changes to the protocol; therefore, in response to this comment, the TCEQ has deleted the statement identified by the commenter.
Comment 9
AAH commented that the protocol should explicitly state the need to secure additional help from authorities outside of the state when the APWL is located on or near an internal or external border.
Response 9
The TCEQ revised the protocol in response to this comment by clarifying the section entitled, “APWL Work Groups,” stating that the Intergovernmental Relations Division (IGR) will coordinate issues relating to the U.S. and Mexico border. Additionally, the TCEQ revised Appendix 2, Program-Specific Procedures, to clarify that the APWL Coordinator will assess the need to secure additional help for areas located near an international or state border.
Comment 10
AAH commented that the responsibilities of the Work Groups should include a public health component for areas that have been subject to increased risk from the hazards of exposure to air pollutants, such as notification and involvement of state, county, and local public health departments and school districts, for awareness and possible coordinated deployment of any relevant assets.
Response 10
The TCEQ will engage stakeholders and inform them of potential health concerns by developing and implementing the Communications Plan for each APWL area. In response to this comment, the TCEQ revised the Communications Plan Guidelines, now in Appendix 6. The guidelines now more clearly state the TCEQ’s goals to communicate any potential health concern, the monitoring information used to make such determination, how the APWL is used to reduce ambient concentrations below a level of potential concern, and to receive input from stakeholders. This revised Communications Plan provides the APWL Coordinator with the framework for stakeholder notification and participation. The APWL Coordinator and Work Group will determine which stakeholders should be notified for each individual APWL action.
Comment 11
TPC expressed concern that, while significant detail in the document ensures a high level of transparency, it could also result in situations where a strict application of the protocol would disregard the unique needs of certain areas. TPC is concerned about the need to conform activities to the written process regardless of impact on the speed or effectiveness of actual emissions reductions towards the end objective of bringing air pollutant concentrations to below acceptable threshold levels. TPC recommended that the TCEQ remove excessive detail that may not fit all situations or reword the protocol to give latitude to the agency to adjust the protocol to fit special situations as necessary. TPC also recommended that the TCEQ add a paragraph at the beginning or the end of the protocol stating that the uniqueness of any given situation may dictate that steps may be added, deleted, or modified as appropriate to facilitate achieving timely and effective emissions reductions.
Response 11
The TCEQ is clarifying that the TCEQ will follow the guidance on the steps in the protocol and will assess each situation to facilitate achieving timely and effective emissions reductions in the portion of the protocol entitled, “Vision and Mission of the APWL.”
Comment 12
TCLM commented that the word “delisted” be added to the language in the portion of the introduction entitled, “Background,” thus specifying that the protocol elaborates on the APWL process, including how areas become listed and delisted.
Response 12
The TCEQ is changing the protocol in response to this comment, as the protocol outlines all processes involved in the APWL from initial observations of ambient monitoring data to delisting of an APWL area.
Comment 13
TPC expressed its support of the yearly internal TCEQ evaluation of the APWL protocol and its effectiveness and recommended that input from the regulated community and other external stakeholders be accepted during this evaluation. TPC further noted that the regulated community, in particular, may have suggestions from its viewpoint close to the process that can enhance the overall effectiveness of the protocol.